SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS? The minutes of the Executive Session of November 18, 2008 and Regular Council of November 18, 2008 were approved with amendments to Regular meeting by adding "as read" to the amended main motion on page 6 of 7 regarding the approval of Ordinance #2975 (Transportation Commission).

SPECIAL PRESENTATIONS & AWARDSAssistant Planner Amy Anderson introduced Tree Commissioners Laurie Sager and John Rinaldi. A slide presentation was made and the Tree of the Year for 2008 was announced as the Spanish Fir, located at 128 Wimer Street. In addition to this announcement, recent activities of the Tree Commission were noted as the following: Collaboration with Ashland Daily Tidings on tree related articles; identifying trees for a "distinctive tree of Ashland" list; revising the Recommended Street Tree guide and updating the Commission Powers and Duties, which were approved by the Council earlier this year.

CONSENT AGENDA 1. Does the Council accept the Minutes of Boards, Commissions, and Committees?2. Does the Council wish to confirm the Mayor's appointment of Libby Edson for a term to expire April 30, 2010 to the Public Arts Commission?3. Does the Council wish to confirm the appointment of Larry Langston as Interim Fire Chief?4. Should the Council approve a resolution to adjust budget appropriations for changes in operational expenses to remain in compliance with Oregon Budget Law?5. Should the Council approve an Intergovernmental Agreement with Jackson County concerning the placement of community service workers with City of Ashland Parks and Recreation?6. Will the Council, acting as the Local Contract Review Board, consent to enter into a public contract for a Risk Management Advisor with Beecher Carlson Insurance Agency?7. Does the Council wish to exercise an option to extend a Landfill Capacity Guarantee Agreement with Dry Creek Landfill for 10 additional years?

2. After hearing the appeal and reviewing the record, does Council approve, modify, or deny the Conditional Use Permit and Site Review to construct a 592 square foot Accessory Residential Unit above a proposed two-vehicle garage, for the property located at 960 Harmony Lane?

Mayor Morrison called the public hearing for Land Use Hearing to order at 7:26 p.m. and read aloud the required procedures.

ABSTENTIONS, CONFLICTS, EX PARTE CONTACTSCouncilor Chapman noted a site visit and shared his observations of the property; Councilor Hartzell noted that her partner lived in the area; Councilor Jackson, Silbiger, Navickas, Hardesty, and Mayor Morrison stated they had none to declare.

CHALLENGESNo challenges were received.

STAFF REPORTCommunity Development Director Bill Molnar briefly presented the question before the Council. Assistant Planner Amy Anderson provided the staff report that included the request for a Conditional Use Permit and Site Review to construct a 592 square foot Accessory Residential Unit above a proposed two-vehicle garage. Mr. Molnar clarified that solar calculations had been submitted and were a Class B lot, which allowed for a higher solar fence.

Mr. Molnar explained the ordinance was not specific in mandating a survey for all Land Use actions. In this case, the proposed building is 12 feet from the side yard and the general requirement is six feet. The rear yard setback has a 20-foot requirement where the applicant's structure would be at 22 feet.

Off-street parking requirements were based on a calculation of 2 spaces for a single-family home and 1.5 spaces (rounded up to two by staff) for a one-bedroom apartment. The applicant would provide the required four spaces on the property.

A complete urban storm drain system exists in both Harmony Lane and Hillview with ample capacity to accommodate a run off from the roof and drive way surfaces as part of the project. Down the alley on an existing property are a ten-foot wide public utility easement and an 8-inch storm drain line in the easement that terminates in a catch basin in the alley. The applicant would install a new storm drain line in the alley to connect to that system. Other neighbors have expressed interest in connecting to the new storm drain line. Six inches is adequate for a shared line but the final determination would come from the proposed engineering drawings.

The definition of paved access to and through does not exist in the code. The Planning Commission applies it by determining if the legal lot of record requires street frontage and if the city street has a paved surface.

APPLICANTS PRESENTATIONBill Emerson/90 5th / Presented for the applicants Jendrisak and Berry. He provided a brief description of the property, noted the existing garage and location of trees on the land. He stated that although the property had not been surveyed, a Topo plan was completed showing existing buildings, grades and trees that allowed him to determine contours and show on paper how they accommodated any of the setbacks. He clarified that the elevation proposed in the Planning Action had changed and provided a new elevation with slight modifications. He described the parking spaces then explained how the drain line would work.

The unit above the proposed structure could be used as a living space or home office. The Site Plan showed that the shadow casting points for the Solar were all within the boundary of the property.

OPPONENTS AND THEIR REPRESENTATIVESRon Doyle/945 Hill View/Commented on the Exparte response regarding the three vehicles in the alley. The camper and pick-up had been stationary for years. The other vehicle was a utility trailer covered by blackberries that extended 10 feet into the alley behind the applicant's house. The alley right-of-way was 20 feet wide with the trailer reducing it to 10 feet of access.

He noted his June 27, 2008 request for a public hearing, August 12, 2008 written testimony to the Planning Commissions Hearings Board, the August 18, 2008 additional evidence and objections to the decision and the October 29, 2008 notice of appeal with attached evidence. He explained the Conclusions and Findings were not supported by substantial evidence in the record under Oregon Land Use Law. There was no evidence in the record showing the alley was capable of handling the traffic that will be generated. He described how the Talent Irrigation District (TID) broke twice due to traffic in the alley because the line that runs down the alleyway is 12-18 inches deep. There was also no evidence that the storm drain was capable of handling the run off.

The project did not meet Setback Requirements. The property lines should be shown in the record. There was no evidence of paved access to and through the development. There was no access to the project off Harmony Lane. The only way to get to the project would be down Ross Lane and the alleyway and both are unpaved. The record did not show how the development would minimize glare, dust, noise and light which are all part of staff's approval criteria. There was no sewer line from the alley and it would need to be pumped up to Harmony Lane. This was a Conditional Use application and had to comply with the Conditional Use criteria. No one knew where the public right-of-way line was located in the alley. Mr. Doyle encouraged Council to deny the request.

It was uncertain who owned the utility trailer or the property where it was parked. Comments were made on the applicant's use of the existing garage for storing contractor tools and materials possibly being moved to the new structure.

THOSE WISHING TO PROVIDE TESTIMONYCyndi Dion/Explained the alleyway was filled in the 1960's over a small year-round creek. The storm drain was a culverted creek that turns right at the end of the alley with a ten-foot easement that runs along the north side of Ms. Dion's property. When the line started leaking a few years ago, it was not on the City's maps and was finally determined to be a city culvert. The Public Works department repaired the leak and slipped a new line inside the old one because of several trees on Ms. Dion's property growing over the line.

She did not believe there were any structures in the alley that required storm drainage. The alley itself contained percolating soil even though it is fill and gravel. If paving is required in the alleyway, Ms. Dion requested the applicant use pervious paving. When the TID spigot was damaged by the applicant's dump truck, a 35-foot geyser ran onto her and a neighbor's property. She took photos and will provide them for the record within the next seven-day period.

She did not believe the culvert creek was part of the Master Storm Water plan in the past but it is now. She further explained the alley is 3-5 feet above grade and during any kind of storm event, water jumps across the alley into her and her neighbor's properties. She did not think the storm drain line the City proposed would be effective based on her experience with how the water runs in that area. An effective storm drain would have to be installed diagonally across her and her neighbor's property to follow a fall line in order to get to Hillview. Her concern was that the project would make the drainage issue worse.

REBUTTAL BY APPLICANTMr. Emerson addressed the storm drain line. City staff cleaned out the line but nothing had been done to reduce the size of the line itself. The applicant is concrete contractor and will eventually have his business in town. The truck that broke the TID line was delivering fill for the owners to landscape their property. The owners do not intend to store any kind of equipment vehicles on their property. They intend to keep the existing garage to store smaller items related to the business. When the owner brings his business to town, he will have a separate location for his work vehicles.

The trailer was not located by the surveyor because it is a mobile vehicle and could be moved if there is a problem with backing out of the proposed site. The TID line broke because it was not installed to handle vehicles. The owner repaired the line when the TID should have repaired it and been instructed to re-install the line below the grade. The size of the line for drainage will not be known until it is engineered. The sewer will be pumped to Harmony Lane, was noted on the site plan and already known and proposed prior to the Public Hearing.

The owners will install sprinklers for fire protection.

Mr. Emerson noted the last paragraph of the Findings mentioned the structure could be used as a residence at 2,725 square feet based on the lot size and the proposed unit is 1,234 square feet.

A request was made to keep the record open. City Attorney Richard Appicello noted there was 120-day deadline for the project that would end December 16, 2008. If the record was left open for 7 days, any participant including the applicant and staff could submit evidence, testimony or argument in writing during that seven-day period. The applicant would receive an additional seven days after the record closed to submit final written argument.

City Administrator Martha Bennett explained that if the record were extended and deliberation went into the New Year, the new Council members would review the record, watch the video or listen to the oral tape of this meeting to qualify for deliberation.

Council could declare the record be held open until 9:00 pm on December 9, 2008. Participant's could submit their evidence, testimony or argument, in writing to the Community Development until 5:00pm December 9, 2008 or at Council Chambers 5:00-9:00pm during the Planning Commission meeting. Deliberations would be continued until 8:00pm December 16, 2008 or Council could continue the meeting later between 12/16/08 and 12/31/08.

It was noted that some testimony heard was distinct from and not the subject of the application or part of the approval criterion.

UNFINISHED BUSINESS1. Does the City Council wish to appeal the decision of Judge Schiveley on MAA v. City of Ashland to the Oregon court of appeals and provide further direction to staff based on the decision?

City Administrator Martha Bennett presented the staff report and discussed the Council's options. One was to appeal the Judgment which would require amending the Professional Services Agreement with Harrang, Long, Gary Rudnick ,with a "not to exceed" amount of $275,000 and directing Legal staff to file all required actions.

The other option was to comply with the Judgment. She explained that Mount Ashland Association (MAA) had made a settlement offer. If the City decided not to appeal, the Professional Services Agreement with Harrang, Long, Gary Rudnick would be amended with a "not to exceed" amount of $225,000, Legal staff would prepare settlement agreements and Council would authorize the City Administrator to sign and implement the settlement.

The MAA settlement offer terms stated that the City would not appeal and MAA would accept $85,000 in settlement of their legal claims. She explained that MAA had filed a petition with the court for reimbursement of $109,300 and this would represent a $24,000 reduction in their legal fees claim. In addition, the City would agree to comply with the decision and send a letter to the Forest Service reversing the October 3, 2006 Change of Practice letter and designate MAA as the buyer of the Ski Area Settlement Sale Contract.

Ron Roth/6950 Old 99 S/Questioned if this was a fiscal responsibility issue or an environmental protection issue. The City had already spent close to $400,000. This was an action triggered by the City of Ashland two and a half years ago and in response, MAA filed a lawsuit. If the City decided to appeal, the downside would be if the City lost, it would cost more money and Mr. Roth did not know if it would afford more protection to the watershed. Voting not to appeal would cap the City's costs but it was unknown if it would have any real impact on the proposed expansion. Mr. Roth urged the Council to accept the ruling by Judge Schiveley, stop the fiscal bleeding and move on.

Suzanne Frey/1042 Oak Knoll Drive/Expressed concern with the City Council's Code of Ethics Policy and the potential conflict of interest regarding the City and MAA. The intent of the Ethics Policy was to show that Public Officials would be independent and impartial in their actions thereby giving the public confidence in the integrity of their government. Her concern was that Councilor Navickas had a long history of fighting with MAA. He had filed personal lawsuits against the US Forest Service and MAA and this raised the question whether he could separate his personal agenda from the business of the City and be impartial in deliberating on the matter. There was not a good reason for the City to persist, the Legal authority was not there for the City to manage, and it was the authority of the US Forest Service. An appeal was not fiscally responsible at this time.

Mayor Morrison commented that Councilor Navickas has never attempted to conceal his position and the voters had elected him as they elect other Councilors knowing they represent a perspective and have special interests or projects. In a test of this sort, the individuals are asked if they can make an unbiased and objective decision based on the facts at hand and Councilor Navickas has stated in several cases he can. The Council and the Mayor all have positions they were elected to represent and Councilor Navickas has always been upfront about that.

Kim Clark/3840 Hilsinger Rd, Phoenix/Explained he was a representative and General Manager of Mount Ashland Association. He encouraged the Council not to appeal the November 17, 2008 decision. Since the decision was announced, MAA and City staff had worked extremely hard and diligently to come to the settlement offered earlier. Many compromises were made on both sides to get to the settlement and Mount Ashland Association was interested in moving forward.

Angie Thusius/897 Beach Street/She thanked everyone for their efforts over the past years regarding the issue. She commented that the Council and Mayor had an historic opportunity to follow through on being truly wise and take MAA to a higher court. The proposed expansion through the community's drinking water source area in the watershed was a complex issue. Contrary to the lower court, an appeals court would take into consideration that if MAA went bankrupt, which it had twice before, the entire community might have to pay more than $1 million to restore and repair the watershed. She encouraged Council to allow a higher appeals court to make the decision.

Alan DeBoer/Submitted an email to be read into the record asking Council not to appeal the judgment. Enough money had been spent already. He noted when the City and MAA were partners working for each other's success. The City had no investment or interest in running Mt. Ashland. Everyone was concerned for the watershed and an agreement that places responsibility on the ski area similar to the Forest Service agreement would be prudent and serve the community well. The City should not want the legal responsibilities as permit holder if the current area should fail. He urged the Council to stop spending legal fees to fight the ski area over an issue it does not want if the City wins. He suggested the City turn the permit over, get an agreement on the water quality and move on. If the snow does not come this year, as the permit holder and operator, the City will have lost a great economic benefit to the whole area. He concluded the expansion would only happen if donations paid for it and it would probably not occur in his lifetime.

Councilor Chapman/Jackson m/s agree to settle MAA v. City of Ashland with Mount Ashland Association with following conditions: The City will not appeal the judgment by Judge Schiveley. The MAA will accept $85,000 in reimbursement for their legal fees. The City Administrator is directed to send a letter to the Forest Service by December 9, 2008 reversing the October 3, 2006 Change in Practice directive and designating MAA as the purchaser of the Ski Run timber sale. DISCUSSION: Councilor Navickas noted the City had made the motion requesting a Business Plan of the project that MAA agreed to prior to his being elected to City Council. When it came down to following through on the agreement, MAA was unwilling and filed a lawsuit that cost the City a large sum of money. He felt that the City has a strong position for appeal and that there had been no obstruction by the City. He noted the injunction from the 9th Circuit Court of Appeal regarding MAA.

He also commented on the partnership between the City and the Forest Service and the responsibility associated with the holder of the Special Use Permit (SUP), which requires funds to be available to cover liability and restoration of the overall project. He pointed out that the City continues to hold these liabilities but there is no coverage to protect it.

Councilor Navickas stated that Judge Schiveley had ruled on both sides of justiciable controversy. The current amount the City was spending on the issue was noted along with the cost associated for the City if the decision was not to appeal. He encouraged the Council to vote no on the motion.

Councilor Jackson supported the motion. The lawsuit was focused and the result would not change anything regarding the expansion or the protection needed in the watershed. The protection of the watershed was most important; pursuing the appeal was not the way to get there.

Councilor Hartzell would vote for the motion based on financial concerns about the City and did think the City would fare well in the appeal and taking that risk at this time raised concerns.

Councilor Silbiger did not think the City had violated the lease but the issue was not about the presumption of winning an appeal. If winning an appeal would achieve greater protection for the City or the ability to achieve that protection he would consider it but it does not. If the City won and was able to get attorney fees back, the issues still existed. The City would be in danger of violating the lease if the court lifted the injunction and the City did not give them the timber sale. The City should end this now and work to make peace with MAA.

Councilor Chapman agreed that the City might have a strong case for appeal but at a great cost to the community. Whoever won, both parties would lose and it was not worth it for the community.

Councilor Hardesty shared Councilor Navickas' frustration but agreed with most of what Council had said. She sited Ron Roth's earlier comments that the appeal could mean spending more money and the City should stop the fiscal bleeding. Winning would not make the environmental situation any better and she was not convinced the City could win the appeal. It was hoped the City would work with MAA to come to a mutual agreement on the expansion, better monitoring of the existing ski area and ensure the environment was protected.

Mayor Morrison commented it was not prudent to risk spending more public money on something that looked like a good idea originally but was not. The City needed to move from a strategy of confrontation to one of collaboration. The appeal would not address the bigger issues; it would look for error in Judge Schiveley's opinion and focus on that. It was a greater expenditure of money with very little opportunity to remediate the problem. The City needs to work with MAA, as there is still a justifiable interest on the part of the City in regard to the preservation and maintenance of the watershed. MAA was a valuable asset to the community.

The Mayor would support the agreement, it was not perfect but the City needed to move ahead. The City and MAA needed to resolve this issue and grant that people on both sides of the divide have legitimate concerns yet it is incumbent of everyone involved to do a better job than done in the past for resolution.

Councilor Navickas/Hartzell m/s to amend the motion to include a letter that Council directs the City Administrator to send to the Forest Service that tells them the position of the City is to put recreational development as a low priority and to place restoration, fire reduction and water quality as a high priority. DISCUSSION: Councilor Hardesty suggested rephrasing the motion to ask the Forest Service to put a higher priority on water quality, fire reduction and restoration without the lower priority on recreational development language. Councilor Navickas responded that recreational development should be a lower priority when it came to the management of the municipal watershed. Mayor Morrison explained that technically the amendment was appropriate but did not agree it was the way to send a clear message. A clear message would be communication between the Forest Service, MAA and the City to determine common interests and improve how to work through them. The Forest Lands Commission had achieved great strides in terms of the Forest Resiliency Plan. There was a legal matter requiring resolution and tagging the proposed amendment could be misconstrued.

Councilor Hartzell/Hardesty m/s to amend the motion to include in the letter on the communication with the Forest Service reversing the Change in Practice letter, a request that the Forest Service keep the City in the communication loop as much as possible and kept informed on the progress of the expansion. DISCUSSION: Councilor Hartzell explained the amendment was not an attempt to replace the Change in Practice letter but a request to be kept in the communication loop. Councilor Chapman agreed with maintaining a relationship with the Forest Service but it should not be a part of the motion as it specifically addressed whether to settle. Concern was expressed that the more complex the motion became increased the City's vulnerability for additional legal trouble. Council should vote on the amendment, the main motion and decide whether to appeal.

Councilor Chapman/Jackson m/s to amend the contract with Harrang, Long, Gary Rudnick for legal services in this case for an amount no more than $225,000. Roll Call Vote: Councilor Chapman, Navickas, Silbiger, Jackson, Hartzell and Hardesty, YES. Motion passed.

2. Does the Council wish to enter into the proposed Intergovernmental Agreement with the Housing Authority of Jackson County regarding the acquisition of 10 acres of property on Clay Street?

Community Development Director Bill Molnar explained the Intergovernmental Agreement (IGA) with the Housing Authority of Jackson County (HAJC) would establish how land division and coordinate certain land use application and responsibilities for future public street improvements.

Senior Planner Brandon Goldman provided a presentation that included:

Key IGA Components

Division of Land Area: 60% City of Ashland and 40% HAJC

Division of Existing Development Rights: 60-67 units for HAJC and 40-47 units for the City

Demolition of one outbuilding removed per HAJC Phase I with the remainder on City Land that would be removed (if necessary) at Phase II

Wetland Mitigation and Enhancement: $80,000 contribution from HAJC with the City responsible for remainder, if any, and ongoing maintenance

Road Improvements would provide for dedications of right-of-ways. Internal new streets completed by HAJC. Off site improvements include property frontage to receive half-street improvement by HAJC and other improvements to be equitably divided when Planning Action Conditions are known

Land area reserved for potential connectivity from Clay to Tolman Creek Road is secured through the IGA and would be through the Planning application stage by HAJC

Property Vicinity

Site Division and Street Improvements

Next Steps

Purchase Agreement ready to execute

Property closing date December 18, 2008

HAJC to submit planning action to divide the property and allow for their 60 unit development

Separate Agreement with Parks may be developed

City Attorney Richard Appicello explained approval from the Planning Commission would occur by demonstrating compliance with the applicable law. If the Planning Commission did not approve the partition, the agreement stated the City would not only appeal but was obligated to follow through to completion, including any appeals.

Ron Roth/6950 Old 99 S/Thought the project was a great idea and asked the Council to approve the IGA unanimously.

Councilor Jackson/Hartzell m/s to approve IGA for the development of Clay Street with the Housing Authority of Jackson County. DISCUSSION: Councilor Chapman commented that assigning the partition at this time limited options for a decent design plan. He sited an article in the Mail Tribune newspaper that described another six-acre affordable housing community that incorporated massive solar designs reducing energy costs 50%. HAJC had several reasons they could not include solar energy into this project yet here was another group doing just that.

Councilor Hardesty clarified that the project referred to in the paper was a $28 million project where the Clay Street project was $10 million plus the land. The City could not have afforded the project without the HAJC purchase. HAJC would use energy star appliances. The public needed to know that an effort was being made towards energy efficiency. The project was not perfect but worthwhile.

Councilor Hartzell noted this was non-profit and the City should work with HAJC as much as possible to improve the project but not treat it different from a private developer's project.

Councilor Silbiger commented that a year prior a private developer did his own development and for the affordable housing portion the City required energy efficiency. He wanted to know how far along the project was in the development process. He agreed with Councilor Chapman but supported the project.

Councilor Navickas also agreed with Councilor Chapman on some aspects but added the project was green from an urban planning perspective.

3. Should the Council approve the attached Findings of Fact, Conclusions of Law and Order on Remand for LUBA 2007-113, [Planning Action 2006-02354] and send Notice of Decision pursuant to the Ashland Land Use Ordinance to the Parties?

City Attorney Richard Appicello advised Council to disclose any Ex Parte communications. The Council and Mayor had nothing to disclose.

NEW AND MISCELLANEOUS BUSINESS1. Should the Council initiate an amendment to Ashland's Land Use Ordinance that would require incorporating public art as part of large-scale development projects?

Community Development Director Bill Molnar provided the staff report and explained it was a request to have City Planning staff start working with the Planning Commission through the Public Arts Commission to evaluate a change.

Concern was expressed that the ordinance required more discussion. The Planning department had other priorities as well and this might not be the ideal time to initiate the ordinance.

ORDINANCES, RESOLUTIONS AND CONTRACTS1. Should the Council conduct and approve First Reading of an ordinance titled "An Ordinance Relating to the Review of Public Art Proposals, Establishing Criteria and Selection Processes for the Acquisition, Acceptance, or Removal from the Ashland Public Art Collection," and move the ordinance to Second Reading?

Delayed due to time constraints

2. Does the Council wish to adopt a resolution supporting drafting of a sweatshop free procurement policy for City uniforms and garments?

Delayed due to time constraints

OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS (None)